In Donaldson v. Dorworth, the Plaintiff was injured in a motor vehicle accident, and subsequently commenced legal proceedings. As is often the case, ICBC’S lawyer filed a jury trial notice, requiring the trial to be heard by judge and jury.

 

In the context of ICBC claims, a jury trial is a presumptive right of the Defendant. If a Plaintiff does not want a jury trial, he or she has the onus of establishing that the case falls within one of the following criteria, as outlined in Rule 12-6(5)(a) of the Supreme Court Civil Rules :

 

(i) the issues require prolonged examination of documents or accounts or a scientific or local investigation that cannot be made conveniently with a jury,

 

(ii) the issues are of an intricate or complex character, or

 

(iii) the extra time and cost involved in requiring that the trial be heard by the court with a jury would be disproportionate to the amount involved in the action . . .

 

It is important to note the use of the word “or”, meaning that all three criteria do not have to be shown to succeed on an application to strike a jury trial notice, but rather either one of the three.

 

In the case at bar, counsel for the Plaintiff argued that the first two of these criteria were applicable. ICBC’S lawyer argued that neither were applicable, and that the application to strike a jury notice was brought too late anyways. Authorities on this issue show, however, that the seven day deadline is not absolute.

 

With respect to the issue of prolonged examination of documents, the Court noted the existence of a large amount of medical documentation, including numerous expert reports and clinical records, and ruled that there would be such a prolonged examination. The Court also found, given the competing and conflicting expert reports, that the issues would require a scientific investigation within the meaning of Rule 12-6(5)(a)(i).

 

However, the Court would eventually rule that the examination of documents and scientific investigation could be made conveniently with a jury, finding that there would be no impediment to the jury being able to understand the evidence, and retaining that understanding through to the end of the trial.

 

In regards to Rule 12-6(5)(a)(ii), the Court noted the plethora of issues of law that the jury would need to be instructed on, such as causation, contributory negligence, the standard of care in negligence, and the law regarding each head of damage that was being claimed by the Plaintiff. With respect to issues of fact, there would be the expert’s opinions, and the facts and assumptions upon which they were based. The Court opined that the inter-relationship between such issues of law and fact, particularly in relation to the issue of causation, made the case at bar more complicated than most personal injury maters. Despite this, however, the Court would rule that the character of the issues did not rise to the level of being complex or intricate within the meaning of Rule 12-6(5)(a)(ii).

 

The Court would go on to dismiss the Plaintiff’s application to strike the jury notice, awarding costs to the Defendant in any event of the cause.

 

[28] In my opinion, chambers judges and masters are well able to decide whether or not a case is appropriate for trial by jury without the assistance of expert opinion. We can form our own conclusions without expert assistance; expert evidence is unnecessary, and therefore inadmissible: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at 23. Had I admitted Dr. Ancill’s report, it would not have altered the result of this application: I have read the expert opinion reports and I disagree with Dr. Ancill’s conclusion that the subject of conversion disorders is one that is too difficult for a jury to grapple with.

 

[29] Although this is a close case, I conclude that the character of the issues in this case, considered individually or in combination with one another, do not rise to the level of being complex or intricate within the meaning of the rule.

 

[30] Having found as fact that the issues require a prolonged examination of documents and a scientific investigation, I turn to whether the jury ought to be dispensed with. As was explained by Lambert J.A. in Nichols v. Gray, the discretion that arises in relation to the examination of documents and the scientific investigation is to be exercised particularly in relation to whether the examination or investigation can be made conveniently with a jury.

 

[31] Similar cases provide some guidance as to how to exercise this discretion, although each case turns on its unique facts. In the end, the determination of whether the examination and investigation can be made conveniently with a jury depends on my impression of how the trial in this particular case is likely to unfold. I see no impediment to the jury being able to understand the evidence in this case as it is given, and retaining that understanding through to the end of what is expected to be a four week trial. I think this case is one where counsel and the experts will be able to explain the medical concepts the jury will need to decide the issues. I expect that with the assistance of opening and closing addresses by able and experienced counsel followed by a proper charge, the jury will be able to properly address the issues in this case. This is a case in which the examination of documents and scientific investigation can be made “conveniently with a jury,” as that phrase has been judicially interpreted. I am not persuaded that the issues cannot be tried fairly by a jury; in fact, I am satisfied that the action can be justly determined on its merits via this mode of trial.

In Gill v. Mijatovic, the Plaintiff was injured in a motor vehicle collision, and subsequently brought an ICBC claim for damages for pain and suffering, as well as various other types of damages. Liability was denied by ICBC’S lawyer.

 

ICBC’S lawyer brought an application to extend the time to file the Notice Requiring Trial by Jury, which had been filed beyond the 21 day notice period provided for in Rule 12-6(3) of the Supreme Court Civil Rules. Counsel for the Plaintiff opposed the application.

 

ICBC’S lawyer had originally filed the Jury Notice 35 days later than permitted under Rule 12-6(3). Counsel for the Plaintiff subsequently requested for ICBC’S lawyer to withdraw the Jury Notice, however this was refused. Counsel for the Plaintiff would later discover that the jury fees had in fact been paid, despite the fact that no steps had been taken by ICBC’S lawyer to either withdraw the Jury Notice, or else to bring an application to extend the time within which to file it.

 

At the actual application, ICBC’S lawyer deposed, inter alia,  in an affidavit that the late filing of the Jury Notice was the result of sheer inadvertence.

 

The Court, in reviewing the relevant authorities, noted the following principles that apply to applications to extend time to file a Jury Notice :

 

• If the Jury Notice is filed late, it is a nullity, rather than a mere irregularity

 

• To file the Jury Notice outside the 21 day period requires leave of the Court

 

• Factors a Court will consider include, but are not limited to :

 

• whether the party applying had a clear intention to have the action tried by a jury within the 21 day period, and whether the failure to file on time was due to solicitor negligence

 

• whether the nature of the action has now changed so materially that it is now clearly appropriate for a jury trial, when it was clearly not during the 21 day time period

 

• whether the parties have consented to a late filing

 

• whether the party opposing the extension of time can show prejudice should the extension of time be allowed

 

• whether the application for an extension of time was brought in a timely manner

 

The Court applied these principles to the facts of the present application, eventually dismissing ICBC’S lawyer’s application to extend the time within which to file the Jury Notice. Particularly fatal to the application was the fact that more than 14 months had gone by between the time ICBC’S lawyer was advised that the Jury Notice was a nullity, and the time that the application for an extension of time was made. The Court found such delay to be wholly unexplained.

 

[56]        The plaintiff does, however, assert that the defendants’ unexplained delay in bringing the application from April 15, 2014 until August 25, 2015, and doing so only then in response to the plaintiff’s own application to strike the Jury Notice should weigh heavily against the relief sought by the defendants.

 

[57]        I agree with that submission …..

 

[58]        The defendants’ delay in failing to apply for an extension of time for the filing of their Jury Notice for more than 14 months after being advised that the notice was a nullity is wholly unexplained and I find that the failure to provide any explanation for that lengthy delay is fatal to the defendants’ application to extend the time for filing of their Jury Notice, and their unauthorized attempt to ratify the payment of the jury fees.

 

[59]        In the absence of evidence from the defendants or their counsel as to why an application was not brought expeditiously to extend the time for filing of their late-filed Jury Notice when the defendants were on notice that it was a nullity requiring a successful application under Rule 22-2(4) to relieve them of the consequences of initial negligence or inadvertence, I must conclude that their failure to apply to extend the time well before July 10, 2015, was deliberate.

 

[62]        I find that, as in Donovan, the defendants’ failure to move expeditiously to attempt to cure the initial default, or at least explain why they did not do so, moves this case beyond one of solicitor’s negligence simpliciter where the equities do not favour the granting of the relief now sought.

In Blaikie v. Penafiel, the Plaintiff was injured in a motor vehicle accident, and consequently made an ICBC claim for damages for pain and suffering, as well as other heads of damages. Liability was admitted by ICBC’S lawyer. Both parties had filed jury notices, however neither paid the jury fees in time for the originally scheduled trial. The trial was adjourned by consent, and a new trial date was set. ICBC’S lawyer then filed another jury notice. Counsel for the Plaintiff then brought an application for an order that the jury notice be declared a nullity, and that the trial proceed by judge alone. The Court granted the application, commenting that :

 

[3] It is my conclusion that the application of the plaintiff should be allowed. In my view, the law is clear that, having failed to perfect their right to a jury by both issuing the jury notice in time and paying the fees as required under the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”), the defendants have relinquished voluntarily the right to a trial with a jury.

 

[4] I refer to the decision in Clark v. D. & M. McBicycle Shop Ltd. (1992), 75 B.C.L.R. (2d) 133, where the Court concluded:

 

In this case, the Plaintiffs voluntarily chose to relinquish their right to a trial with a jury by not paying the jury fees. The provisions of the Jury Act clearly provide that a party can maintain their right to a trial with a jury provided that the jury fees are paid. The right to a trial with a jury is exercised when the jury notice is filed and served and belongs to the party filing and serving that notice. That right will be maintained, as long as the court does not order otherwise, or as long as the jury fees are paid.

Under Rule 12-6(5) of the British Columbia Supreme Court Civil Rules, the Court can refuse a Jury Trial.

 

In Jackson v. Yusishen, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for pain and suffering, and various other forms of damages. One of the injuries alleged was a rib fracture, which caused pain to the Plaintiff when he would cough. He mad multiple surgeries to correct the problem, however these were unsuccessful. An issue for a jury to decided would be whether or not the Plaintiff‘s ribs were hurt in the accident and, if so, whether or not the motor vehicle accident in question caused or contributed to the complications faced by the Plaintiff. ICBC’S lawyer sought a trial by jury, however counsel for the Plaintiff argued that the issues would be too complex for a jury. The Court disagreed, commenting that :

 

 

[23] It is possible that the jury may find that the accident weakened the plaintiff’s ribs such that the later coughing episode caused them to fracture. In that event, the standard language of an Athey instruction will suffice to guide the jury’s deliberations. Again, juries are regularly instructed on similar Athey issues – this case would not present any greater complication on that issue than any other.

[24] Once the jury has determined whether the accident caused rib fractures or a weakening of the ribs that later turned into fractures, the rest of the jury’s duties will be relatively straight forward. If their answer to that question is yes, then they will have to assess the degree to which the injuries have impaired the plaintiff’s function and award damages accordingly. For that task, they will have the assistance of expert reports of the type that are conventionally adduced in personal injury cases. Those reports include a functional capacity evaluation, a vocational assessment, a cost of future care report, and an economist’s assessment of the present value of various loss scenarios. Again, in serious personal injury cases, juries are routinely asked to consider such reports. There is nothing about the content of the reports in this case that suggest that a jury would not be able to conveniently consider their content and render a verdict accordingly.

[25] If the jury’s answer to the causation question is no, then their task will become very nearly trivial.

[26] Although there are a number of expert reports that will go into evidence in this case, the reality is that the jury will likely not be required to scour each and every word in each and every report. For example, the plaintiff’s economist’s reports may be useful to the jury should it wish to award future losses to the plaintiff, but it is unlikely that the jury will need to go beyond picking what appears to it to be the appropriate multiplier for a given loss and a given set of positive and negative contingencies.

[27] In my opinion, the jury’s task of hearing, examining, and considering the evidence in this case will not exceed the bounds of convenience. The jury will be asked to conduct a scientific inquiry into what the radiographs could and did show of the plaintiff’s rib structure, but that will be a relatively narrow and focused inquiry. The jury will be guided by the opinions of qualified medical practitioners and by counsel’s submissions. It is not every contest of medical opinion that will disqualify a jury from trying a personal injury claim, and in my view, the scientific inquiry that the jury will make on this issue will be within its capacity.

[28] Once the jury gets past the issue of causation, this case will become a relatively straightforward assessment of personal injury damages. The evidence on quantum issues is entirely conventional and is of the sort that juries are often asked to consider and assess. The jury may have to make some difficult decisions, but the path to those decisions will not, in my view, be so intricate or complex as to overwhelm the jury’s capacity to arrive at a just and proper judgment.

 

Under Rule 12-6(5) of the British Columbia Supreme Court Civil Rules, you have 7 days from service of a Jury Notice on you to apply to strike the Jury Notice. As recent case law indicates, this time limit is not absolute, and applications brought beyond this time frame to strike a jury notice can indeed be granted.

 

In Wallman v. ICBC, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for injuries. Counsel for the Plaintiff brought an application seeking leave to extend the time within which to bring an application to strike the jury notice in the case, and also for an order to strike the jury notice. The Court granted the Plaintiff’s applications. With respect to the timing of the application to strike the jury notice, the Court commented :

 

[55] The plaintiff will have leave to apply to strike the jury notice. There has been sufficient evolution of the complexity of the case to justify the exercise of the discretion described in Rule 22-4 to extend the time within which the application may be brought. While the application could have been brought earlier, the trial is still far off. The parties could not point to any measure having been taken because the trial would be heard by judge and jury that would not otherwise have been taken. No prejudice is likely to be occasioned by the delay from April 2011 to April 2012 in bringing on this application. Once it is established there has been a significant change in the complexity of the case after the expiry of the time for bringing the application, as a rule, delay in bringing on the application to strike the jury is but one factor to consider on the application, but it is not fatal.

 

The British Columbia Court of Appeal would later uphold this decision

 

[7] The decision to strike a jury notice is a discretionary one that relates to the management of a trial and may not be interfered with lightly on appellate review: MacPherson v. Czaban, 2002 BCCA 518. Absent an error of principle, or failure to give sufficient weight to all relevant considerations, deference must be accorded to such an order.

[8] The legal test to be applied on review of a discretionary order is whether the judge “has given weight to all relevant considerations”: Mining Watch Canada v. Canada (Minister of Fisheries & Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6 at para. 43. The appellants contend that the chambers judge acted on irrelevant considerations or alternatively failed to apply established legal criteria. With respect, I do not agree.

[9] In this case, the chambers judge found that the issues for trial will require a scientific investigation. This is a factual determination for which deference must be accorded absent palpable and overriding error, which is not alleged. In the exercise of his discretion, he found that the scientific investigation into the proposed evidence could not conveniently be undertaken by a jury. In reaching that conclusion, the judge was satisfied that a proper review of the evidence and the legal issues could not be ensured by a jury that would be required to understand and retain opinion evidence from a large number of expert witnesses over a protracted period of time.

 

In Moll v. Parmar, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for injuries sustained therein. ICBC’S lawyer brought an application to strike the Plaintiff’s jury notice on the grounds that the matter would be too complex for the jury. The Court agreed.

 

[42]         The factors which militate in favour of the trial proceeding with a jury include the following. First of all, there is the plaintiff’s presumptive right to a trial by jury. Secondly, the issue of causation is not as complicating a factor in this case, as it was found to be on other occasions when a jury notice was struck. These would include situations where there has been more than one tort which is before the court, the existence of alleged novus actus interveniens and matters of the like. Thirdly, the interdependency claim is not by itself a valid reason for this action not proceeding before a jury. Such a claim has in the past been heard by a jury.

 

[43]         What militates against the action proceeding before a jury is the sheer volume of medical reports, and in many instances, the scientific aspect of the evidence. I have reviewed many of the medical and other experts’ reports which were provided to me in October 2012. As I noted above, they comprise approximately 475 pages. The reports refer to other reports and assessments. The neuropsychological reports deal with many different tests, as do the vocational and functional capacity evaluations.

 

[44]         I  emphasize that what is in the record before me are experts’ reports, that is, evidence which, depending on admissibility issues, will be before the trier of fact. In that regard they are to be distinguished from, as I have noted, hospital and other records which may well have much less significance or importance to the trier of fact.

 

[45]         In my view, there can be little doubt that the issues in this case will require a prolonged examination of documents or accounts or a scientific or local investigation. The plaintiff presents two alternative theories, the first being whether the accident caused an organic brain injury, which is scientifically complex.

 

[51]         I am satisfied that both tests set out in Rule 12-6(5)(a)(i) and (ii) have been met. First this case does involve a scientific investigation which will include a prolonged examination of documents, in particular experts’ reports, that cannot conveniently be heard by a jury. Secondly, the issues are sufficiently intricate and complex that the trial should not proceed with a jury. Justice would not be done if that were to take place. Accordingly, I direct that the trial be heard by the trial judge without a jury.

 

In Cliff v. Dahl, the Defendant brought an application to strike the Jury Notice well beyond the stipulated 7 day time period. Although the application was dismissed in this case, the Court commented that the 7 day time period is not absolute.

 

[9]             Ms. Dahl acknowledges that her application to strike the jury notice is outside of the seven day time limit. However, she argues that the assigned trial judge has the authority to strike the jury notice on application regardless of whether the seven day time limit has been observed: Patterson v. Rankel, 2001 BCSC 952; Lomax v. Weins, 2003 BCSC 396; and Adamson v. Charity, 2006 BCSC 1642. See also, Rule 12-6(5)(a). Ms. Dahl maintains that Mr. Cliff has known of her intention to have the jury notice struck since September 8, 2010, when the issue was discussed at a CPC. Further, Ms. Dahl maintains this action has become more complicated since the jury notice was served by the addition of the three third parties and defendants and by the second action arising out of the July 31, 2011 motor vehicle accident.

 

[10]         Mr. Cliff argues that Ms. Dahl has brought her application to strike the jury notice more than 19 months after the time period in Rule 12-6(5)(a) expired. Further, at a CPC held on February 11, 2011, the court directed Ms. Dahl to bring on her application within a reasonable period of time. While the application was scheduled for March 30, 2011, due to Ms. Dahl’s failure to serve her materials on time, the application did not go ahead. In these circumstances, Mr. Cliff argues the delay should preclude the application. Mr. Cliff notes that Ms. Dahl has not applied for an extension of the time limits pursuant to Rule 22-4(2).

 

[11]         In addition, Mr. Cliff argues the action has not become more complex since the service of the jury notice on May 25, 2011. The defendants were aware of the third parties since the spring of 2009. At Mr. Cliff’s discovery on April 16, 2009, information concerning the identity of the owners of the disabled vehicles was disclosed. The nature and extent of Mr. Cliff’s injuries were known to the defendants from the outset of the proceedings. Although another action is now to be heard with this proceeding, Mr. Cliff argues that having two actions heard together does not render the case too complicated for a jury: Harder v. Nikolov, 2001 BCSC 1101.

 

[12]         Under the old Rule 35(4)(a), a pre-trial conference judge, the trial judge or a master could make an order that a trial be heard without a jury. The court interpreted this provision broadly; it permitted the application to be made outside the seven day time limit imposed in old Rule 39(27), which is for the most part identical to the new Rule 12-6(5). While the old Rule 35(4)(a) does not appear to have found its way into the new rules, the rationale behind permitting applications outside the strict seven day time limit remains consistent with the intent and purpose of the new rules. The ability to apply to strike the jury notice outside the strict time limit was necessary to ensure a fair trial and the court’s ability to respond to a change in circumstances surrounding the conduct of a trial. Further, it is apparent that a trial management judge has authority to grant the relief claimed by Ms. Dahl without any reference to the seven day time limit: Rule 12-2(9)(b). Lastly, the court has a discretion to extend time limits in appropriate circumstances without the necessity of a separate application: Rule 22-4(2).

 

In Campbell v. McDougall, the Plaintiff was involved in two separate motor vehicle accidents, and brought ICBC claims for damages arising from both accidents. In total, there were 30 expert reports that were to be adduced at trial, 20 by the Plaintiff, and 10 by ICBC’S lawyer. The Plaintiff challenged the Jury Notice previously issued on the basis that the ICBC claims were too complex for the jury. The Court agreed, commenting that:

 

[14]         The plaintiff has served approximately 20 expert reports authored by 16 different experts. In reply, the defendants have served 10 expert reports prepared by seven experts. Combined, these reports amount to approximately 700 pages. The jury is therefore facing the prospect of examining, considering, digesting, and retaining information from approximately 30 reports authored by 23 experts. The range of expert evidence is as broad as it is long, and it includes: general medicine, physiatry, psychiatry, neuropsychology, psychology, anaesthesiology, neurology, plastic surgery, occupational therapy, physiotherapy, forensic engineering and economic actuarial analysis.

 

[15]         In addition to these expert reports, there are also over 1,200 pages of clinical records relating to the plaintiff’s condition and treatment. Many of these records will be used in cross-examination of the plaintiff and consequently the jury will need to be instructed on the proper use of such records.

 

[16]         The defendants acknowledge that due to the number of treatments the plaintiff has sought and undergone over the years, this litigation involves more than the usual number of clinical records. The defendants also agree that there is a vast amount of neuropsychological raw data that may need to be presented and explained to the jury. However, the defendants point out that the nature and contents of these records has not been disclosed to the court. The defendants maintain that most if not all of the documents in question are not so complex that their examination and analysis by the jury would be unduly taxing for them.

 

[17]         Having reviewed the materials submitted on these applications and having considered the submissions of counsel, I am satisfied that there is a vast amount of documentary evidence that will likely be presented to the jury in this trial. I accept what the plaintiff says on this point, and I also accept that many, if not most, of the documents in question will relate to scientific or other expert areas of evidence and will be of a complex nature.

 

[18]         In my opinion, because of the nature of the issues in play at this trial, the immense quantity and variety of material that is likely to be presented into evidence, the real potential for differing uses of this material, and the complex nature of much of the material, the jurors in this case will be called on to engage in a prolonged examination of documents or accounts.

 

[37]         I find that the issues that will be addressed at the joint trial of these matters will require the trier of fact to engage in a prolonged examination of documents, as well as a scientific investigation. I also find that the issues in dispute between the parties are of an intricate or complex nature.

 

In Adamson v. Charity, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for non-pecuniary damages, as well as several other types of damages. ICBC’S lawyer filed a Jury Notice relatively early on in the proceedings. It was not until over three years later that counsel for the Plaintiff made an application to strike the Jury Notice. ICBC’S lawyer opposed the application, arguing that the Defendant would suffer prejudice due to the fact that the application was brought at such a late time, and also that the issues do not require a scientific investigation, nor are they intricate or complex. Counsel for the Plaintiff argued that he had to wait until all the expert reports were exchanged, before being in a position to ascertain the complexity of the proceedings. Counsel for the Plaintiff further submitted that the case had become more complex over time, and that there were contradictory expert opinions about the nature and extent of the plaintiff’s injuries, in addition to the appropriate treatment for them.

 

 [7]               Even if the application was not brought in a timely manner, I am unable to find that this has prejudiced the defendant.  Defence counsel explained that he has prepared for a trial by jury and that a trial by judge requires different preparation.  However, defence counsel was unable to provide me with any specific examples of how changing his preparation would prejudice the defendant.  Defence counsel admitted that he would not need additional expert reports and would still attempt to simplify matters as much as possible if the trial proceeded before a judge alone.

 

[13]           The defence submits that the case is not complicated and the medical records in the two years following the motor vehicle accident are not complex, voluminous or overly scientific.  The defence submits that if the case at hand is complex or intricate, it is because the plaintiff has made it so by retaining multiple experts to generate voluminous reports.  

[14]           It is my opinion that this case requires a scientific investigation, prolonged examination of reports and is complex in character.

[15]           This case is complex as it involves an extensive scientific inquiry as well as an economic investigation.  There are 21 experts who have provided 36 expert reports totalling approximately 500 pages.  There are 220 medical and scientific terms within 33 medical expert reports, all of which would have to be explained to a jury so that the jurors could understand and evaluate the opinions offered.  Understanding the medical reports will entail understanding the 118 scientific tests that have been administered to the plaintiff over the past six years.  These tests are highly specialized, technical, and scientific.  In addition, there are 2500 pages of clinical records and 15,600 pages of economic reports.

[16]           There are significant conflicts among the experts with regard to fundamental issues such as the nature and extent of the plaintiff’s injuries.  The scientific inquiry will involve conflicting evidence involving diagnosis, causation, mitigation, prognosis, and future care.  A complicating factor will be the effects of the plaintiff’s prescription medications.

[17]           In addition to the complexity arising from the scientific inquiry, the case is further complicated by the assessment of damages. The plaintiff claims pecuniary damages arising from loss of rental income, outside contracts, opportunity to invest in further rental properties, and extra labour costs.  Given that all of the real estate is owned by the plaintiff’s wife, there is an issue as to whether the plaintiff was a property investor and property manager.  Accountants, economists and a real estate appraiser will all offer evidence with respect to the plaintiff’s alleged pecuniary damages.

 

In McIntosh v Carr, the Plaintiff applied to strike the Jury Notice, claiming the trial would be too complex for a jury. The Court granted the application.

 

[6]           A 25 day trial requires a significant commitment by jurors. Experience tells us that juries are capable of understanding the expert medical evidence typically heard in cases involving an alleged brain injury but experience also indicates that juries have more difficulty retaining that understanding throughout longer trials. This affects my consideration whether it is convenient for a jury to undertake the medical, or “scientific” investigation required in this case.

 

[7]           A 25 day trial involving intricate medical, psychological and behavioural issues involving a young person who was not yet fully developed at the material time, presents such a risk. That risk is compounded by a number of complications that the evidence must address. Taken together, these factors also render the issues too complex for a jury.

 

[8]           It is now about ten years post-accidents. Over that period, the plaintiff has undergone extensive treatment and a variety of testing including cognitive or psychological testing. The outcome of testing as it relates to the diagnosis or proof otherwise of the alleged brain injury is complicated by factors such as the identification and effect of a pre-existing learning disability as well as other social, scholastic and family stressors already present in the plaintiff’s life before the accidents. There are live issues as to whether these factors explain or at least materially contributed to the plaintiff’s ongoing difficulties. The factors also impact the application of any expert evidence respecting future pecuniary losses.

 

[9]        The defendants contend that the evidence is not too complicated for a jury. They point out that the court refused to strike the jury notice in Forde v. Interior Health Authority (c.o.b. Royal Inland Hospital), 2009 BCSC 254 (CanLII), 2009 BCSC 254, a medical negligence claim involving 19 experts and 26 detailed expert reports and summaries of evidence. The medical evidence covered some of the same areas as in the case at bar as well as others, including neurosurgery, radiology, neuroradiology and kinesiology. The trial in that case was scheduled for 15 days. In another case, Furukawa v. Allan, 2007 BCSC 283 (CanLII), 2007 BCSC 283, the court also declined to strike the jury notice. The plaintiff claimed a brain injury in that case and the trial, as here, was scheduled for 25 days.

 

[10]     Each case is necessarily fact dependent but the results in Forde and Furukawa may be taken as confirmation that factors such as the length of trial, the extensive number of medical experts and complex medical issues do not automatically remove the right of a party to a trial with a jury.